Thompson v. Mazo, 22268.

• Decision Date: 12 January 1970
• Docket Number: No. 22268.,22268.
• Parties: Thelma G. THOMPSON, Appellant, v. Sylvan MAZO, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

137 US App. DC 221, 421 F.2d 1156 (1970)

Thelma G. THOMPSON, Appellant, v. Sylvan MAZO, Appellee.

No. 22268.

United States Court of Appeals, District of Columbia Circuit.

Argued June 27, 1969.

Decided January 12, 1970.

Mrs. Florence W. Roisman, Washington, D. C., for appellant. Mr. Jerry S. Byrd, Greenville, S. C., was on the brief for appellant.

Mr. Herman Miller, Washington, D. C., for appellee.

Mr. Ralph J. Temple, Washington, D. C., filed a brief on behalf of the American Civil Liberties Union Fund, as amicus curiae, urging reversal.

Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges.

BAZELON, Chief Judge:

D.C.Code § 16-1504 (1967) provides that a defendant who pleads title in a possessory action in the Court of General Sessions must enter into an "undertaking, with sufficient surety" before the cause will be certified to the District Court, which alone is empowered to try the issue of title. The question presented by this case is whether the "undertaking" must be in the form of a lumpsum bond regardless of the defendant's ability to provide it, and may not be in any other form which the defendant is able to provide and which will provide "sufficient surety" for the plaintiff.¹ The Court of General Sessions required a lump-sum bond and the District of Columbia Court of Appeals affirmed. We reverse and remand for further proceedings.

I.

Appellant and her husband purchased a house and lot in October 1957. To secure payment on the purchase price, they placed two deeds of trust on the property. Subsequently, appellant's husband, allegedly without appellant's knowledge or consent, made a third deed of trust to secure a $7500 indebtedness with a construction company.² This note was negotiated to a mortgage company and a foreclosure sale was held, again allegedly without notice to appellant. At this sale in May 1966, appellee purchased the property for $3500, subject to the first and second deeds of trust. In June, appellant's family received from appellee a notice to vacate their home within thirty days. When they failed to do so, appellee filed suit for possession on August 2 in General Sessions Court, claiming that appellant and her husband were tenants at will,³ whose tenancy had been terminated by the notice to quit.⁴ On August 16, appellant filed a plea of title, alleging that her signature had been forged on the promissory note and the deed of trust under which appellee claimed title. The plea was noted and the cause was ordered certified to the District Court, conditioned upon appellant's posting a $3000 bond by August 22.⁵ On that date, appellant filed a Motion in Opposition to Strike Plea of Title, stating that because of her poverty she was unable to post the bond. On August 26, the General Sessions judge denied appellant's motion and struck her plea of title for failure to post the bond. Three days later, judgment for possession was entered for appellee in the Court of General Sessions in the summary proceeding.

Appellant noted her appeal of this judgment to the District of Columbia Court of Appeals on September 1, 1966. Shortly thereafter, while the appeal was pending, appellee took possession of the house. Since appellant had to provide alternative shelter for her family, she discontinued her monthly payments on the first and second deeds of trust; since his title was in dispute, appellee also failed to make these payments. Hence, the holder of the second deed of trust foreclosed, and appellee lost title to the property. On August 8, 1968, the District of Columbia Court of Appeals affirmed the trial court's order awarding possession. Appellant then filed in this court a petition for allowance of an appeal, which was granted on October 21, 1968.

II.

Appellee argues that we should not reach a decision on the merits because of a District Court judgment involving these parties. These are the pertinent circumstances. On July 28, 1966, after receiving appellee's notice to quit, appellant filed a suit in forma pauperis in the District Court for reconveyance of the property, naming appellee and others as defendants. At the same time, appellant filed a motion for a temporary restraining order and preliminary injunction against the prosecution by appellee of any suit for possession in General Sessions. On August 2, before the District Court acted, appellee commenced the action which is on appeal here. Therefore, on August 26, appellant's motion for injunctive relief was denied by the District Court because

there is pending in the District of Columbia Court of General Sessions, Landlord and Tenant Branch, a possessory action in which plaintiff appellant has filed a plea of title, and upon her posting bond in said action, plaintiff would be entitled, as of right, to a stay of eviction, which is sought by her present motion.

However, on the same day, the General Sessions judge struck appellant's plea of title for her failure to post the bond. On March 14, 1967, while the General Sessions judgment was on appeal, the District Court granted appellee's motion to dismiss the suit for reconveyance as moot.

Appellee cites appellant's failure to seek review of the District Court's dismissal of her suit as a bar to this appeal. The doctrine of judicial finality protects the District Court's disposition of a claim from collateral attack in the District of Columbia Courts. In the present case, however, the suit in the District Court was the collateral cause. The Court of General Sessions was the primary arena chosen by the parties. The District Court recognized this in its order of August 26. Appellee chose his forum and derived benefits from that choice, and appellant pursued the proper steps to appeal the judgment rendered in that forum. Hence, the decision of the District Court, rendered out of deference to the action pending in the court of appellee's choice, does not preclude this appeal, even though it would have involved, had it reached the merits, the same questions which appellant sought to have litigated by pleading title in the possessory suit.

III.

The challenged statutory interpretation led to a harsh result here. Since jurisdiction to try title rests exclusively with the District Court, the consequence of striking appellant's plea and refusing to certify the case to the District Court was to deprive appellant of the benefits for which § 1504 was designed.⁶ The lack of a hearing on the merits is troublesome to say the least.⁷ The issue is complicated where, as here, this deprivation is occasioned by a litigant's inability to post the required bond.⁸ Due process⁹ and equal protection¹⁰ considerations loom on the horizon when the diminution of rights is based on an economic classification not required by the ends to be served.¹¹

The District of Columbia Court of Appeals upheld the trial court's view that protection of the plaintiff's interest¹² required the "undertaking" to be a lump-sum bond without regard to whether the defendant had the financial ability to provide it.¹³ We think, however, that the words of the statute¹⁴ do not impose the strict requirement of a "lump-sum" bond in all circumstances.¹⁵ The statute provides in pertinent part:

When * * * the defendant pleads title to the premises, * * * under oath, and enters into an undertaking, with sufficient surety, to be approved by the court, to pay all intervening damages and costs and reasonable intervening rent for the premises, the court shall certify the proceedings to the United States District Court * * *.¹⁶

An "undertaking" need not be a money bond.¹⁷ It can as well be an agreement for monthly payments in escrow.¹⁸ The parties may calculate the proper amount of payments, under the court's supervision.¹⁹ Factors to be considered are a reasonable rental for the premises, possible damages and costs,²⁰ the defendant's income, and the amount of payment which are presently being made to other mortgagees. The guiding principle for the court is, of course, to arrive at a reasonable monthly payment which will, at one and the same time, impose a fair obligation on the defendant, permit the case to be heard on the merits, and assure the plaintiff that if he wins he will, having been denied interim possession, at least receive reasonable intervening rent. To further protect the plaintiff's interests, the court may exercise its discretion over the "sufficient surety,"²¹ by requiring the defendant to stipulate that he will confess judgment in the possessory action should he default without good cause.²² It is an impermissible application of the statute for a court to decline to provide an approach like that set forth above and instead to insist on a money bond beyond the capability of the defendant. We express no opinion on the difficult question of what the statute requires of a defendant who is financially unable to enter into an "undertaking" with surety sufficient to protect a plaintiff's legitimate interests.

We now take up appellee's contention that the case is moot because appellant's possession cannot be restored, the property in dispute being owned by a person, not a party herein, who acquired title on the foreclosure of the second deed of trust. However, the judgment before us may have collateral consequences²³ affecting appellant's liability for rent during the period of her occupancy²⁴ and appellee's liability for rents collected thereafter.²⁵

We think the interests of justice will be preserved if we confine our action to reversing the judgment of the District of Columbia Court of Appeals with instructions to remit the case to the Court of General Sessions for further order of that court — perhaps a determination that dismissal can be ordered without substantial possibility of injury to either party, perhaps a provision for a protective order or formal disclaimer to ensure that result, or perhaps a determination that, should there be an enlargement of the pleadings with respect to damage claims, there...